STATE OF OHIO, CITY OF YOUNGSTOWN, Plaintiff-Appellee, v. PHILLIP CLARK, Defendant-Appellant.
Case No. 16 MA 0189.
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY
September 10, 2018
[Cite as State v. Clark, 2018-Ohio-3723.]
BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 16 TRD 01647Y. JUDGMENT: Affirmed. Atty. Ralph Rivera, Office of the Mahoning County Prosecutor, 21 W. Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee, and Atty. Cynthia Henry, P.O. Box 4332, Youngstown, Ohio 44515, for Defendant-Appellant.
{¶1} Defendant-appellant, Phillip Clark, appeals from a Youngstown Municipal Court judgment sentencing him to 180 days in jail for driving under suspension and failure to control, following his no contest plea.
{¶2} On February 12, 2013, a police officer initiated a traffic stop of appellant after noting a traffic violation. Appellant did not stop and in fact fled from the officer. During the pursuit appellant lost control of his vehicle, running over a curb and into a field. At the time of the pursuit, appellant‘s driver‘s license was suspended.
{¶3} The officer arrested appellant. Appellant was charged with driving under suspension, a first-degree misdemeanor in violation of
{¶4} Pursuant to a plea agreement, plaintiff-appellee, the State of Ohio, dismissed the two minor misdemeanors. Appellant then entered a no-contest plea to failure to comply and driving under suspension. The trial court found appellant guilty.
{¶5} The trial court subsequently sentenced appellant to 180 days in jail for failure to comply and fined him $150. For driving under suspension the court fined appellant an additional $150. The court also placed appellant on two years of intensive probation supervision and suspended his driver‘s license for one year.
{¶6} Appellant filed a timely notice of appeal on December 5, 2016. He also requested a stay of execution of his sentence pending this appeal, which the trial court granted. Appellant now raises three assignments of error.
{¶7} Appellant‘s first assignment of error states:
THE DEFENDANT/APPELLANT‘S SENTENCES ARE CONTRARY TO LAW AS THEY DO NOT SERVE THE OVERRIDING PURPOSES AND PRINCIPLES OF SENTENCING AS EXPRESSED IN
ORC 2929.21 .
{¶8} Appellant contends that his sentence is not consistent with sentences imposed for similar offenses committed by similar offendеrs. As an example of a similar
{¶9} An appellate court reviews a trial court‘s sentence on a misdemeаnor violation under an abuse of discretion standard.
{¶10} Appellant relies on
shall be reasonably calculated to achieve the two overriding purposes of misdemeanor sentencing [to protect the public from future crime by thе offender and others and to punish the offender] * * *, commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similar offenses committed by similar offenders.
{¶11} Here, the trial court sentenced appellant to 180 days in jail for failure to comply, which is a first-degree misdemeanor. The maximum sentence for a first-degree misdemeanor is 180 days.
{¶12} Appellant cites a single example of an offender who had somewhat similar charges to him and received a lesser sеntence. But Tribble is not comparable to the case at bar because the defendant in that case was convicted of a first-degree misdemeanor and a fourth-degree misdemeanor. See Tribble, 7th Dist. No. 13-MA-50. Appellant, however, was convicted of two first-degree misdemeanors.
{¶13} Moreover, an examination of the record demonstrates that the trial court considered
{¶14} There is no indication that the trial court abused its discretion in sentencing appellant. The court demonstrated compliance with
{¶15} Accordingly, appellant‘s first assignment of error is without merit and is overruled.
{¶16} Appellant‘s second assignment of error states:
THE APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT FAILED TO ALLOW THE DEFENDANT/APPELLANT AN INDEPENDENT OPPORTUNITY TO SPEAK BEFORE IMPOSING SENTENCE.
{¶17} Appellant argues the trial court did not provide him with his right to allocution. Pursuant to
[a]fford counsel an opportunity to speak on behalf of the defendant and address the defendant personally and ask if he or she wishes to make a statemеnt in his or her own behalf or present any information in mitigation of punishment.
{¶19} If the trial court does not afford the defendant‘s right to allocution, he or she is due resentencing, unless the error was harmless or invited. State v. Robenolt, 7th Dist. No. 04-MA-105, 2005-Ohio-6450, ¶ 14, quoting State v. Campbell, 90 Ohio St. 3d 320, 738 N.E. 2d 1178 (2000), paragraph two of the syllabus. Appellant cites various examples of acceptable means of satisfying the right to allocution. In his examples, appellant references this court‘s recognition of “[A]nything further you wish to say before I impose a sentence here?” as satisfying. Tribble, 7th Dist. No. 13-MA-50, at ¶ 11, citing Crable, 7th Dist. No. 04-BE-17, at ¶ 20. In addition, the fact that the defendant and his counsel presented mitigating factors is evidence that the defendant received the right to allocution. See State v. McGilton, 7th Dist. No. 07-BE-9, 2008-Ohio-1185, ¶ 32-33.
{¶20} Here, the record reflects that the trial court provided appellant with his right to allocution. The trial court asked appellant, “Anything elsе you want to say before I sentence you?” (Tr. 6). To which appellant‘s counsel replied “Yes, your Honor.” (Tr. 6). Following this exchange counsel presented some mitigating factors, including that appellant had paid off all his outstanding fines and costs and “kept his nose to the grindstone.” (Tr. 7). Appellant himself went on to ask the court “Please give me another chance” and asked the court to consider his children, exclaiming, “I got three little girls I be taking care of, like, and I try my best. Like, I ain‘t never been in trouble before, like, and I understand I did something[.]” (Tr. 7).
{¶21} The above question by the cоurt and response by appellant and his counsel demonstrated that the court afforded appellant his right of allocution in accordance with
{¶22} Accordingly, appellant‘s second assignment of error is without merit and is overruled.
{¶23} Appellant‘s third assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED APPELLANT DUE PROCESS OF LAW WHEN IT IMPOSED A JAIL SENTENCE WITHOUT ALLOWING THE APPELLANT AN INDEPENDENT OPPORTUNITY TO SPEAK AND SENTENCED THE
APPELLANT TO A TERM INCONSISTENT WITH SENTENCES IMPOSED FOR SIMILAR OFFENSES COMMITTED BY SIMILAR OFFENDERS.
{¶24} Appellant argues that due to the inconsistency of his sentence with those of similar offenders who committed similar crimes and the violatiоn of his right of allocution the trial court abused its discretion in sentencing him.
{¶25} As addressed above, the court complied with the misdemeanor sentencing statutes and gave appellant the оpportunity to speak on his own behalf at sentencing.
{¶26} Because assignments of error one and two are meritless, there was no abuse of discretion regarding sentencing.
{¶27} Moreover, appellant did not raise a proportionality argument at his sentencing hearing. When an appellant does not raise the proportionality argument at trial a reviewing cоurt examines the assignment under a plain error analysis. State v. Sargianopolous, 7th Dist. No. 12-MA-141, 2013-Ohio-5772, ¶ 6, citing State v. Lazazzera, 7th Dist. No. 12 MA 170, 2013-Ohio-2547, ¶ 34. Pursuant to
{¶28} “Proportionality in sentencing does not mean that sentences for similar crimes must be identical. It means they must be consistent, forming a rational and predictable pattern.” Sargianopolous, 7th Dist. No. 12-MA-141 at ¶ 11, citing, State v. Georgakopoulos, 8th Dist. No. 81934, 2003-Ohio-4341.
{¶29} As previously stated, appellant cited a single example of a defendant who was sentenced less severely than him in order to allege a disproportionate sentence. Again, the charges in that case are not the same as the charges in appellant‘s case. He has not dеmonstrated plain error.
{¶30} Accordingly, appellant‘s third assignment of error is without merit and is overruled.
{¶31} For the reasons stated above, the trial court‘s judgment is hereby affirmed.
Robb, P. J., concurs
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.